Today, International Criminal Court (ICC) Prosecutor Fatou Bensouda formally withdrew charges against Kenyan President Uhuru Muigai Kenyatta. Kenyatta had been facing five counts of crimes against humanity for crimes allegedly committed during the violence that engulfed the country after the December 2007 presidential poll. His charges were originally confirmed in January 2012.
The decision to withdraw charges follows this Wednesday’s judgment of Trial Chamber V(b) in which the judges refused to further adjourn the start of Kenyatta’s trial. In that decision, the judges also ordered the prosecutor to give notice within one week whether she will withdraw the charges or that the evidence collected has improved enough that she is ready to proceed to trial.
In a September 2014 request to indefinitely adjourn the Kenyatta trial, the prosecution said that its evidence is “insufficient to prove Mr. Uhuru Kenyatta’s alleged criminal responsibility beyond reasonable doubt.”
In today’s notice, the prosecutor stated that the evidence had not improved, and “[f]or this reason, and in light of the Trial Chamber’s rejection of the Prosecution’s request for an adjournment until the Government of Kenya complies with its co-operation obligations under the Rome Statute, the Prosecution withdraws its charges.”
In a separate statement from Bensouda concerning the status of the Kenyan government’s cooperation with the investigations in the Kenyatta case, she noted that the trial chamber had found that the government of Kenya had not cooperated with the prosecution’s efforts as required by the Rome Statute, stating:
“Crucial documentary evidence regarding the 2007-2008 post-election violence, including concerning the conduct of the accused, can only be found in Kenya and is only accessible to the Prosecution through the assistance of the Government of Kenya. This crucial assistance was ultimately not provided, as confirmed by the recent decision of the Trial Chamber.”
Bensouda also highlighted what she called other “severe challenges,” facing her office, which she said included “a steady and relentless stream of false media report…an unprecedented campaign on social media to expose the identity of protected witnesses…and a concerted and wide-ranging efforts to harass, intimidate and threaten individuals who would wish to be witnesses.”
Bensouda also recorded a more informal video statement, explaining her decision to withdraw charges and saying the decision marked “a dark day for international justice”.
President Kenyatta welcomed the decision to drop the charges, in a lengthy statement released on Kenya’s Capital FM. He said: “I am excited by this news, which I have awaited ever since the day my name was announced to the world in connection with the case. I am also deeply relieved by this decision, which is overdue by 6 years.”
He added: “The Prosecutor opted to selectively pursue cases in a blatantly biased manner that served vested interests and undermined justice. As a result, the Court has had to pay a steep reputational price, which it will continue to face unless a serious and systemic rethinking of the International Justice framework is undertaken.”
The statement also referred to the ongoing ICC case against Deputy President William Ruto and Joshua arap Sang, a radio journalist, saying he was “confident that they will be vindicated in due course.”
Kenyans for Peace with Truth and Justice, a Nairobi-based coalition of groups that have been pushing for accountability for crimes committed in the 2007-2008 post-election violence, said in a statement that the dropping of charges “brings to an end an important and sad chapter in the search for justice” for the victims. The statement added:
“The circumstances under which the case has been withdrawn raise grave concerns both for the victims of the crimes for which Kenyatta was charged, who have waited for justice for seven years, as well as for victims of future atrocity crimes who may see similar state obstructionism as Kenya has so effectively deployed to thwart the search for justice and the fight against impunity.”